Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2014 Bus driver given another chance after multiple suspensions Employee sent letter after termination acknowledging his misconduct and vowing to be better if given another chance By JEffrEy r. SmiTh A n Ontario bus driver who was fi red after being disciplined several times for poor customer service should be reinstated after the driver wrote a letter indicating he fi nally "got it," an ar- bitrator has ruled. e 52-year-old employee was hired as a bus operator by Metrolinx, the organi- zation running the Toronto-area regional transit service called GO, in March 2001. He was considered a competent driver and in his fi rst decade with Metrolinx he had one instance of discipline — one-day suspension stemming from a customer complaint. Metrolinx had a strong com- mitment to customer service and held its employees to a high standard. In February 2012, the driver asked a passenger who was speaking loudly on her cellphone to "keep it down." e passenger refused and called him a profane name to the person next her, so the driver pulled over and told her he would call the police if she didn't get off the bus. e passenger complained to Metrolinx and the driver was suspended. He initially grieved the suspension but later acknowledged his ac- tions were inappropriate and dropped the grievance. Metrolinx expressed concern about other complaints that the driver was easily frustrated by passengers using elec- tronic devices onboard his bus. Ongoing problems with customer On Aug. 1, 2012, the driver refused to load a mother's stroller into the luggage bay of the bus, and another passenger volun- teered to do it. When the woman sat in the front seat with her crying baby, the driver told her to go to the back of the bus be- cause the crying distracted him. e next day, when the same woman tried to board his bus, the driver blocked the way and said if her baby was going to cry again she would have to go to the back. When she tried to calm her baby with a musical toy, the driver asked her to turn it off . e woman complained to Metrolinx, also mentioning the driver said "you peo- ple." e woman, who was black, said she felt "discriminated, abused and harassed" by the driver. e driver admitted to some of the be- haviour, but he said he couldn't load the stroller because he had a bad back. He acknowledged asking the woman to sit in the back both days, but denied insisting on it or making a racist comment. Metrolinx accepted his explanations, but felt his interaction with the custom- er was not in line with its expectations. Metrolinx suspended him for three days and gave him a letter stating he must be committed to "an immediate and substan- tial improvement to your customer ser- vice skills" or face "increased disciplinary action, up to and including dismissal." On Aug. 21, the driver saw the same customer waiting for his bus. He had pre- viously asked about the possibility of be- ing assigned to another route, but it was diffi cult because of seniority and bidding priority, so the driver had agreed he would serve the customer in a courteous manner if she boarded his bus again. However, the driver called Metrolinx to say he was going to refuse service to the woman. Over an open channel, the driver called the customer a profanity and re- fused an instruction to pick her up. A supervisor arranged for a replace- ment and took the driver, who was visibly upset, back to the garage. He urged the driver to call the employee assistance plan (EAP), which the driver did the next day. He saw a psychologist and received a pre- scription for anti-depressants. Metrolinx immediately suspended the driver without pay for fi ve days, for insub- ordination, inappropriate behaviour and "overall performance." e driver denied refusing to pick up the customer, saying he had felt a panic attack coming on and his inappropriate language was caused by his mental state. On Aug. 28, the driver continued to call the customer a liar who caused him stress. Metrolinx placed him on sick leave with a mandatory monitored EAP program along with an anger management pro- gram. It informed the driver that failure to complete the program would result in his dismissal and further misconduct could result in discipline including dismissal. more customer complaints Between September and November 2012, Metrolinx received three more customer complaints about the driver's conduct, all saying he reacted inappropriately to loud voices or music. e driver denied ev- erything except for admitting he asked a passenger to turn down music on one oc- casion. He received a fi ve-day suspension, but Metrolinx acknowledged there was no evidence supporting the complaints and the suspension should be removed. Metrolinx received a complaint from a customer on Feb. 15, 2013, that the driv- er had stopped the bus to determine the source of a noise from a customer's cell- phone. He twice told her to put the phone in silent mode, but she refused and was em- barrassed at being singled out. e driver denied stopping the bus, though he admit- ted asking the passenger to turn off the sound of her phone. Metrolinx suspended him for nine days and, because of his previ- ous disciplinary record, he was given a fi nal warning that any future behaviour of this nature would result in his dismissal. On Nov. 7, 2013, a 16-year-old girl rushed caSe In PoInt: WRONGFUL DISMISSAL There is a high bar for establishing just cause for dismissal in Canada. Often, one of the main considerations in determining whether there is just cause is the disciplinary steps taken by the employer to ensure the employee in question is aware of her situation and the need to improve. Additionally, once the employee is made aware of the need to change her ways, she has to be given a reasonable chance to do so. That's where progressive discipline comes in. However, progressive discipline doesn't always achieve the desired results. If that's the case, the employer may very well have reached that high bar for just cause. But even then, a late acknowledgment of responsibility and the need to improve by the employee — even after termination — could save that employee's job. BACKGROUND

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